Canadian Union of Public Employees v. Sudbury Hospital Services Limited, 1984 CanLII 962

[1984] OLRB Rep. January 124

2055-83-R Canadian Union of Public Employees, Applicant, v. Sudbury Hospital Services Limited, Respondent, v. International Union of Operating Engineers, Local 796, Intervener

BEFORE: Owen V. Gray, Vice-Chairman and Board Members W. H. Wightman and B. L. Armstrong.

APPEARANCES: Jim Anderson and Jack Bird for the applicant; K. R. Valin, E. H. James and Lloyd Harris for the respondent; John Sullivan, Dianne Robertson and Joan St. Jean for the intervener.

DECISION OF THE BOARD; January 9, 1984

1. This is an application for certification. The applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act. The employees for whom the ap­plicant seeks exclusive bargaining rights are currently represented by the intervener.

2. The applicant seeks certification for one bargaining unit consisting of all employees of the respondent. The respondent and intervener take the position that there are two bar­gaining units, one consisting of full-time employees and the other consisting of part-time em­ployees and students employed in the school vacation period.

3. The Board's general practice in certification applications where an incumbent union holds bargaining rights is to describe the bargaining unit in the same terms as the unit set forth in the most recent collective agreement between the employer and the incumbent union: Gilbey Canada Limited [1974] OLRB Rep. April 257; Ontario Hydro [19781 OLRB Rep. Aug. 754; Milltronics Limited [1980] OLRB Rep. Jan. 56; and Bestview Holdings Limited [1983] OLRB Rep. Feb. 185. The rationale for this is explained in Milltronics Limited, supra, at paragraph 6:

On an application for certification the Board is required to determine the unit of employees which is appropriate for collective bargaining. Where one trade union is seeking to displace another, however, the established bargaining structure is prima facie appropriate - particularly if it has been established by the parties themselves, through collective bargaining, and continued through the years over several collective agreements. Indeed, what better evidence of "appropriateness" could there be than a pre-ex­isting bargaining structure which the parties have developed themselves and have adapted to their own bargaining circumstances. The Board has been reluctant to fragment an established bargaining structure or to "carve out" groups of employees from such structure. The Board will generally find the appropriate bargaining unit to be that which the incumbent pres­ently represents; although, of course, in appropriate circumstances, a larger unit may also be appropriate and could be granted without raising any concern about fragmentation. Usually, however, a "raiding union must "take" what the incumbent union has...

5. The parties to this application do not challenge this practice; they merely disagree on the correct result of its application. The applicant argued that the existing bargaining struc­ture treated all employees as falling within one bargaining unit. The respondent and intervener argued that the existing structure and practice reflected a treatment of the full-time and part-time employees as distinct bargaining units. The existing structure and past history of bar­gaining were described to us in statements by counsel for the respondent and representatives of the intervener. All parties agreed we could take these assertions as proven without the ne­cessity of hearing evidence. Those facts will now be set out.

6. On November 3, 1971, the intervener was certified for its customary craft unit of "engineers" employed by the respondent. On January 4, 1973, the intervener was certified to represent all full-time employees of the respondent, excluding part-time employees and em­ployees covered by the subsisting agreement applicable to the craft unit. In 1975, the inter­vener organized the part-time employees, and indicated to the respondent that it had sufficient membership support among those employees to justify its voluntary recognition to represent them. The employer granted such recognition in 1975 during what was described as "con­current negotiations" with respect to the craft unit and full-time unit.

7. The terms and conditions of employment of all employees of the respondent are now found in one document. The style on the cover page is:

COLLECTIVE AGREEMENT

BETWEEN

SUDBURY HOSPITAL SERVICES

AND

INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL #796

JANUARY 1, 1983 - DECEMBER 31, 1983

On its first page, the agreement is headed:

THIS AGREEMENT MADE THIS 1ST. DAY OF JANUARY 1983 BETWEEN

SUDBURY HOSPITAL SERVICES - GENERAL LAUNDRY

and

INTERNATIONAL UNION OF OPERATING ENGINEERS - LOCAL #796

The recognition clause reads as follows:

Sudbury Hospital Services recognizes the Union as the sole collective bargaining agent for all of its employees save and except foremen, those above the rank of foreman, office staff and those employees included in the subsisting Collective Agreement covering Engineers.

8. The parties agree that there was not a "subsisting Collective Agreement covering the Engineers" when the current collective agreement was signed. We are told there has been no "subsisting collective agreement covering the engineers" since at least 1980; since then, the terms

and conditions of employment of all employees have been found in one document. There is no suggestion that the terms and conditions of employment of the part-time em­ployees have ever been the subject of a separate, self-contained document.

9. So far as anyone present at the hearing could recall, since 1975 the terms and con­ditions of full-time or part-time employees had not been negotiated separately. There would be one set of negotiations. The incumbent trade union had only one bargaining committee during negotiations. Membership on this committee usually included both full-time and part-time employees. No one present was able to advise us how issues arising in that committee had been dealt with procedurally and, particularly, whether the part-time members had a say with respect to full-time issues or vice versa. One of the employee representatives of the in­cumbent had been in attendance at the ratification vote held at the conclusion of the last set of negotiations prior to the coming into force of the Inflation Restraint Act. She was able to advise us that both full-time and part-time employees attended that meeting. There was only one vote and one ballot box. The respondent claimed no knowledge of the ratification pro­cedure employed in the past by the intervener. The business agent present and representing the intervener, while personally unfamiliar with the conduct of the bargaining committees and ratification votes in past negotiations with this employer, did say it was not uncommon for his union to conduct separate ratification votes where two or more bargaining units are in­volved.

10. The recognition clause reproduced above is suggestive of a single bargaining unit. Counsel for the respondent, however, urges us to find two separate bargaining units covered by one document, having regard to the separate different treatment of part-time employees under the collective agreement. Counsel drew our attention to article 7 of the agreement, which provides:

A part-time employee is an employee who is normally employed for not more than twenty-four (24) hours per week. The working conditions of part-time employees are set out in Schedule "A" attached hereto.

Schedule "A" is entitled "Part-Time Employees", and begins with the following sentence:

The following Articles in this Agreement shall apply to part-time em­ployees:

There follows a long list of article numbers from which, curiously, article 7 is omitted. The other omissions are articles dealing with seniority, hours of work, vacations, various kinds of leave, (adoption, bereavement, leave without pay, dury and witness duty, permission to leave and sick leave), health and welfare benefits and a boilerplate interpretation clause dealing with the interpretation of the masculine or feminine gender wherever it appears in the agree­ment. Schedule "A" goes on to provide that the articles set out thereafter apply only to part-time employees. Those articles cover seniority, probation, transfers, hours of work, vacations, pay in lieu of fringe benefits and shift exchange privileges.

11. Counsel for the respondent argued that this different treatment of part-time em­ployees, and particularly the maintenance of separate seniority lists for full-time and part-time employees, justified a finding that this is a document covering two separate and distinct bar­gaining units. Counsel expressed the concern that a finding that full-time and part-time em­ployees fall within one bargaining unit would oblige the respondent to treat such employees equally in all respects in future negotiations. This, he argued, would alter the status quo. Only a finding that there are two units would, he said, permit the respondent to maintain a status quo in which the two types of employees are treated differently. We did not find those ar­guments persuasive. It is not uncommon for the parties to a collective agreement covering one bargaining unit to maintain different seniority lists for different employees and to otherwise treat various categories of employees differently. With respect to seniority lists, these may be maintained on a plant, departmental, classification or even job basis, and on more than one basis for more than one purpose. That the parties to a collective agreement choose to do so is in no way indicative of an intention to treat the employees on each list as constituting a separate bargaining unit. The different treatment in a collective agreement of different cate­gories of employees is not, as counsel for the respondent suggested it might be, a per se vi­olation of the Labour Relations Act by either the employer or the trade union.

12. Nothing in the language of the collective agreement unequivocally suggests an in­tention to treat full-time employees and part-time employees as two separate bargaining units. Schedule "A" does refer, under "probationary employees" to "part-time employees trans­ferred from full-time unit", but five lines later on the same page, the schedule provides:

The option to transfer to and from the full-time group, to and from the part-time group shall be on a voluntary basis.

Article 5 in the body of the agreement, which does not cover part-timers, refers to the hiring of employees "from outside the bargaining unit". Articles 4 and 14, which apply to both full-time and part-time employees, read, in part, as follows:

ARTICLE 4 - UNION SECURITY

All employees in the bargaining unit shall, when they have completed their probationary period, be required to pay an among equal to the cur­rent monthly dues to the Union whether they become members or the Union or not so long as the Union is the recognized collective agent of the bargaining unit...

ARTICLE 14 - WORK DONE BY SUPERVISORS

Employees who are not in the bargaining unit will not perform duties normally done by those employees who are covered by this Agreement, except for the purposes of instruction, experimenting or in emergencies when regular employees are not available, or to the extent that bargain­ing unit employees are deprived of working normal hours or deprived of overtime work assignments.

(emphasis added)

13. The repeated use of the phrase "the bargaining unit" in the singular suggests a common intention to treat all employees as being part of one unit. Nothing in the heading to or manner of execution of the agreement suggests otherwise (in contrast to, for example, the situation in Ontario Hydro, supra). The little the parties could tell us about the intervener's approach to past negotiations is consistent with full-time and part-time employees being seen to fall together in one unit. The allegedly separate units are not separately treated in the rec­ognition clause. In short, there is in the facts of this case nothing to support defining the bar­gaining unit otherwise than in the terms used ill the existing collective agreement, except the unanimous agreement of the parties that the anochronistic reference to a subsisting agreement covering engineers should be deleted.

14. Accordingly, at the hearing in this matter, the Board ruled orally as follows:

For reasons to be delivered later, and having considered the submissions of the parties, we are unanimously of the view that there is one appro­priate bargaining unit for the purpose of this application, defined as fol­lows:

All employees of the respondent save and except foremen, those above the rank of foreman and office staff.

We hereby affirm that ruling, for the reasons set out in this decision.

15. December 12, 1983, the terminal date fixed for this application, is the date which the Board has determined under section 103(2)(j) to be the time for ascertaining membership under section 7(1) for the purpose of this application. Based on all of the evidence before it, the Board is satisfied that, as of that date, more than fifty-five per cent of the employees in the appropriate bargaining unit were members of the applicant trade union. As this is a dis­placement certification application, the Board exercised its discretion under section 7(2) of the Act and ruled orally at the hearing that a representation vote be taken and appointed N. Har­per, Labour Relations Officer, to confer with the parties with respect to arrangements for the vote. The Board hereby confirms those rulings.

16. A representation vote will be taken of the employees of the respondent in the bar­gaining unit. All employees of the respondent in the bargaining unit whose names appear on the voters' list at December 22, 1983 as agreed to between the parties, who do not voluntarily terminate their employment or who are not discharged for cause between December 22, 1983 and the date the vote is taken, will be eligible to vote.

17. Voters will be asked to indicate whether they wish to be represented by the ap­plicant or intervener in their employment relations with the respondent.

18. The matter is referred to the Registrar.